Excerpt:.....directing accounts, non-compliance with--application for security and attachment under 0. xxxviii, rules 5, 6--appeal--high court, power of, to rectify technical error--order xxi, rule 42, applicability of--ejusdem generis, principle of. - - it seems to us, however, that we need not enter into a technical question of this sort, if we are satisfied that the worst that could be said against the respondents is that they had not correctly specified the particular rule under which they desired to invoke the assistance of the court. if we are satisfied that it was so, we have undoubtedly power, sitting as a court of appeal, to rectify any merely technical error committed in the court below and to maintain the order in question in substance, while making it clear that in our opinion it must..........said to have been made at any stage of a suit and, therefore, on the further question whether the decree passed in the suit under section 92 of the code of civil procedure was a final decree disposing of that suit, or was of the nature of a preliminary decree. in any case the order of the court, if treated as passed under rule 6 of order xxx viii of the code of civil procedure, would be open to question on more than one of the ''grounds put forward in the memorandum of appeal. it seems to us, however, that we need not enter into a technical question of this sort, if we are satisfied that the worst that could be said against the respondents is that they had not correctly specified the particular rule under which they desired to invoke the assistance of the court. we expressly asked the.....

Judgment:

1. This is a first appeal on the execution side against an order passed under the following circumstances. The appellant Lala Jai Narain was the truetee qt manager of a certain endowment and a suit was brought against him under the provision of Section 92 of the Code of Civil Procedure, This suit ended in a decree in favour of the plaintiffs. One of the directions given by the decree was that Lala Jai Narain defendant should furnish accounts, within a stated period, showing his dealings with the trust property and hand over that property, together with any sum in his hands due to the endowment, to the committee of management appointed under the decree. The order for furnishing accounts was not complied with and has not yet been complied with. The plaintiffs decree-holders came to the Court below with an application purporting to be under the provisions of Order XXXVIII, Rules 5 and 6 of the Code of Civil Procedure. They stated that they had information that Lala Jai Narain was preparing to dispose of his immoveable property in order to defeat the claims of the newly appointed managers of the endowment. They asked the Court to call upon him to furnish security, or in the alternative to attach the immoveable property belonging to the judgment-debtor, of which certain details were given in a schedule appended to the application. The Court heard both parties and, by the order now under appeal, directed Lala Jai Narain to file security in a sum of Rs. 80,000 and in the meantime issued an order for conditional attachment of the property detailed in the application. The appeal coming up for hearing to day, a preliminary point was taken on behalf of the decree-holders, to the effect that the order of the Court below, although passed upon an application wrongly purporting to be made under Order XXXVIII, Rules 5 and 6, was really passed under Order XXI, Rule 42 of the Code of Civil Procedure, and was not appealable as an order. In rejoinder to this it was contended on behalf of the appellant, among other things, that even if the order could be treated as one under Order XXI, Rule 42, it would be appealable as a decree, being an order between the decree-holders and the judgment-debtor falling within the scope of Section 47 of the Code of Civil Procedure, and therefore, amounting to a 'decree' under the definition. It became clear in the coarse of argument that this preliminary point was closely connected with the questions raised in the memorandum of appeal against the merits of the order itself and that it was expedient for us in any case to hear the parties on the appeal. This we have done, and in the view we take of the case we do not think it necessary to pronounce separately upon the question raised by the preliminary objection. Undoubtedly the decree-holders, that is to say, the present respondents, thought that they were moving the Court below to take action under Order XXXVIII of the Code of Civil Procedure. Whether or not such action was possible at all would depend on whether the application could be said to have been made at any stage of a suit and, therefore, on the further question whether the decree passed in the suit under Section 92 of the Code of Civil Procedure was a final decree disposing of that suit, or was of the nature of a preliminary decree. In any case the order of the Court, if treated as passed under Rule 6 of Order XXX VIII of the Code of Civil Procedure, would be open to question on more than one of the ''grounds put forward in the memorandum of appeal. It seems to us, however, that we need not enter into a technical question of this sort, if we are satisfied that the worst that could be said against the respondents is that they had not correctly specified the particular Rule under which they desired to invoke the assistance of the Court. We expressly asked the appellant to argue the case from this point of view, namely, whether the order in question was or was not one which the Court could lawfully and with justice---regard being had to the merits of the case---have passed under the provisions of Order XXI, Rule 42 of the Code of Civil Procedure. If we are satisfied that it was so, we have undoubtedly power, sitting as a Court of Appeal, to rectify any merely technical error committed in the Court below and to maintain the order in question in substance, while making it clear that in our opinion it must be treated as an order passed under Order XXI, Rule 42 aforesaid. The conclusion we have come to is that the order in question can and should be so treated. The conditions necessary for calling into operation the pro visions of this Rule were undoubtedly satisfied.

2. Whether the decree in question be recorded as a preliminary decree, or as a decree finally disposing of the suit, does not seem to be material when the matter is looked at from the right point of view. The reference in Order XXI, Rule 42, to a decree directing enquiry into mesne profits shows that a decree may be either a final or a preliminary decree and yet fall under the operation of this Rule Beyond question the decree under consideration did direct an enquiry into the state of accounts as between Lala Jai Narain and the trust fund, with a view to the ascertaining of the liability, if any, of the said Jai Narain towards that fund. This was certainly an enquiry into a matter ejusdem generis with an enquiry into the question of mesne profits, Lala Jai Narain could have avoided the application now made against him, in the simplest manner possible, by complying with the terms of the decree. He certainly cannot be permitted to defeat this portion of the decree by the simple process of refusing to comply with the order directing him to furnish accounts. The Court must have some jurisdiction ever him in the matter, and the provisions of Order XXI, Rule 42, seem on the face of them wide enough to permit the Court to take action under it in the circumstances. Strictly speaking, under the terms of this rule, the power of the Court is limited to ordering attachment of the property of the judgment-debtor, as in the case of an ordinary decree for payment of money. But it cannot be said that the Court below committed any error of substance in offering Lala Jai Narain the option of furnishing security for a specified amount before it ordered attachment. Indeed we are disposed to think the order should be so framed as to leave it open to the judgment-debtor to satisfy the Court, even now, by furnishing security in a reasonable amount. We have gone into the merits of the case so far as they bear on this particular application. Lala Jai Narain has appealed against the decree passed in the suit under Section 92 of the Code of Civil-Procedure and that appeal is pending. This, however, does not exempt him from the liability to comply with the provisions of the decree, in the absence of any stay order from the Appellate Court. We think that the Court below, on the facts laid before it, was within its jurisdiction in directing the attachment of the judgment debtor's property and was under the circumstances justified in passing Such an order. We propose to maintain that order with the following modifications. It will further be provided that the attachment will only continue in force until Lala Jai Narain complies with the provision of the decree in the matter of furnishing account and handing over any money which may be found due, provided that the attachment may be removed on Lala Jai Narain's furnishing proper security, for an amount which we think it sufficient upon full consideration to fix at a sum of Rs. 50,000, to the satisfaction of the Court below, for his due compliance with any decree that may eventually be passed by this Court on the regular appeal. Under all the circumstances we think it sufficient to leave the parties to bear their own costs in this appeal, subject to this provision, that the costs of the respondents, including the fee certified by their Advocate, may be paid out of the trust funds.

3. We may note that one of the difficulties we have had in dealing with this appeal has been the absence of a formal order in the Court below, arid in our opinion such formal order ought to have been drawn up and its presence on the record would have been of material assistance to us